Hallmark Developers, Inc. v. Fulton County, GA

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 12, 2006
No. 05-15633 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02–01862-CV-ODE-1
HALLMARK DEVELOPERS, INC.,
CHARLES GARRISON,
Plaintiffs-Appellants,
versus
FULTON COUNTY, GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 12, 2006)
Before EDMONDSON, BIRCH and ALARCÓN,* Circuit Judges.
ALARCÓN, Circuit Judge:
*
Honorable Arthur L. Alarcün, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
I
Appellants Hallmark Developers, Inc. and Charles Garrison (collectively,
“Hallmark”) appeal from (1) the summary judgment in favor of Appellee Fulton
County, Georgia (“the County”) on their intentional discrimination claim based on
the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”); and (2) the judgment
entered following a bench trial on the merits on their discriminatory impact claim
based on the FHA.
The District Court concluded that Hallmark had failed to adduce evidence
that the County had intentionally discriminated on the basis of race when it
refused to re-zone a parcel of property in order for Hallmark to build, inter alia,
homes affordable to households with low and moderate incomes. The District
Court also concluded that Hallmark failed to demonstrate that the re-zoning
decision had a significant disparate impact on minorities. Hallmark argues that (1)
the District Court failed to consider relevant evidence of discriminatory intent; (2)
was clearly in error in its finding regarding disparate impact; and (3) considered
expert testimony that should have been excluded under Rule 702 of the Federal
Rules of Evidence.
2
II
For many years, Chris Doughtie, president of Hallmark, received literature
and invitations to attend business functions in South Fulton County, Georgia.
This literature identified South Fulton County as a “development target and
advised developers of the incentives to encourage development in the corridor.”
Accordingly, Hallmark and Appellant Charles Garrison acquired property in
South Fulton County (“the Property”) with the express intention of developing it
for a mixture of uses, including commercial, office, and residential. Specifically,
they hoped to construct a large development consisting of apartments, townhomes
single-family homes, and office space. The townhomes and single-family homes
would be built under the control of Hallmark. The apartments would be built by a
contractor subject to conditions imposed by Hallmark. Hallmark intended that a
large percentage of the homes would be “affordable,” as defined by the
Department of Housing and Urban Development (“HUD”).1 The Property would
have to be re-zoned from AG-1 (agricultural) to MIX (mixed use) in order for this
development to take place.
In early 2001, Mr. Doughtie arranged for a visit to Chestnut Lake, a low-
1
Under HUD definitions, housing is “affordable” if a person making 80% of the annual
median income for a given geographical area pays 30% or less of gross monthly income for
mortgage and utilities or rent and utilities. See 24 C.F.R. §§ 92.2, 92.252, 92.254.
3
income, single-family subdivision that Hallmark had developed in DeKalb
County, Georgia. Among others, he invited Fulton County Commissioner William
Edwards, Fulton County Assistant Director of Comprehensive Planning Beth
McMillan, and Fulton County Economic Development Director Joseph Johnson.
The purpose of the visit was to acquaint these county officials with the sort of
development Hallmark intended to make on the Property.
Chestnut Lake contains 700 lots. The homes initially were priced in the
range of $89,000 to $130,000, but after changes were made, the price range was
from approximately $120,000 to $150,000. The homes were built by Mayfield
Homes, which is owned in part by Mr. Doughtie and his son. Mr. Doughtie told
the county officials that Mayfield Homes would build the single-family homes on
the Property as well, and that the homes on the Property would be similar in
appearance and layout to those at Chestnut Lake.
During this visit, none of the county officials expressed any concern
regarding the quality of the Chestnut Lake development.2 Commissioner Edwards,
however, cautioned Mr. Doughtie to involve South Fulton community associations
2
In its order on summary judgment, the District Court stated that it was undisputed that no
concerns regarding quality were expressed. At trial, Commissioner Edwards testified that he had
concerns over the quality of the homes. He felt, among other things, that they were “very
generic,” had very small rooms, and “just looked like row houses.” It is not clear whether he
expressed these concerns to Mr. Doughtie.
4
in the re-zoning process to “get the community happy.” Among the community
groups Commissioner Edwards listed were the South Fulton Parkway Alliance, the
Cliffondale Community Association, and Green South Fulton (“the community
groups”).
On October 30, 2001, Hallmark filed an application with the Fulton County
Department of Environment and Community Development seeking to re-zone the
Property. Kathryn Zickert appeared before the Board of Commissioners (“the
Board”) on behalf of Hallmark at a public hearing on February 6, 2002. The
Board granted a 60-day deferral to allow Hallmark to engage in discussions with
the community groups regarding the proposed development.
On April 3, 2002, Ms. Zickert appeared before the Board on behalf of
Hallmark a second time. After the public hearing, Commissioner Edwards (who is
commissioner of the district where the Property is located) moved to deny
Hallmark’s re-zoning application “based on the quality of what [he’d] seen and
things [he’d] heard.” Chairman Mike Kenn supported Commissioner Edwards’s
motion. He stated that the development was “probably one of the poorest-
designed, laid out subdivisions [he’d] ever seen.” Another commissioner made a
substitute motion for an additional 60-day deferral, and the Board granted the
deferral so that Hallmark could continue to discuss unresolved issues with the
5
community groups.
On June 5, 2002, Ms. Zickert appeared before the Board on behalf of
Hallmark a third and final time. Commissioner Edwards moved to deny the
application due to the lack of improvement “in terms of the quality of the site plan
and the site plan design.” Hallmark’s re-zoning application was denied.
While Hallmark’s application for re-zoning was pending, Mr. Doughtie, his
colleagues, and his attorneys met with the community groups as suggested by
Commissioner Edwards. During the meetings, community group members
expressed opposition to the proposed development on the Property. Three
community leaders, Abby Jordan, Dave Robinson, and Larry Hyde stated that they
opposed the proposed development because it was likely to attract “blacks” and
families with children to the area. Another community activist, Bruce Moody,
stated that he did not want poor black people moving into low-rent, lower priced
homes in South Fulton County.
On January 26, 2001, at a meeting with a community group, Hallmark’s
counsel heard Commissioner Edwards say to Ms. Jordan, “I know a lot of your
objections to projects like [Hallmark’s] proposed development, is a black issue.”
The community groups also objected to the quality of the proposed homes, “made
demands which drove up the prices of homes,” and “did not want apartments in
6
anything but luxury form.” Hallmark agreed to many of the changes in the quality
of the development that the community groups suggested.
Hallmark did not produce evidence that any racist remarks were made at the
hearings in front of the Board. Although Hallmark contends that “subtle remarks
were made by no fewer than three activists” to the Board at the second hearing on
April 3, 2002, Hallmark does not state exactly what the remarks were.3 The
County points out that one member of the community stated:
What I’m saying is that we have no choices that are over
[$150,000, with reference to the price of the homes].
And what I’m trying to get at is if we just keep building
houses that are all under 150, we will never raise the bar
in South Fulton. We will never bring in the kind of
development that I thought this Commission envisioned.
The same community member later referred to the “apartment challenge” and “the
transient part of that.” Commissioner Emma Darnell responded:
That’s a bad argument to bring to me. Let the approach
have something to do with some objective measurement
of the quality of life. Talk to me about environment.
Talk to me about traffic. Let’s not bring our personal
aesthetic prejudices and biases to the table . . . this
County Commission is not going to close its doors to
ordinary working people who also want to live and have
nice houses.
3
The gist of the statements appears to be that the community members wanted the
development to be more upscale.
7
Commissioner Nancy Boxill stated: “I don’t want to participate in a zoning
process that starts to say what kind of person gets to live where.” Commissioner
Edwards stated:
Let me just add, too, because I want to thank both my
colleagues for bringing out a very good point and a
sensitive point because you understand my motion [to
deny the re-zoning application] has nothing to do with
price. . . But we do talk about price and a lot of times I
think we should change that to quality and other things.
And that was the basis of my denial.
Another community member said something about keeping South Fulton Parkway
“pristine.” Commissioner Boxill stated that the community members were
describing a “redlining” practice.
The County’s Planning Staff, Community Zoning Board, the Atlanta
Regional Commission, and the Georgia Regional Transportation Authority
reviewed and repeatedly recommended approval for Hallmark’s zoning
application. Nevertheless, Commissioner Edwards voted to deny the re-zoning.
He was apparently influenced by the opposition of the community groups in this
decision. He stated in his deposition that ninety percent of the zonings that
happen in South Fulton County are “done real simple between the community and
the developer.” Zoning applications opposed by such community groups are
usually not approved. Actual voting records confirm that in eighty-nine of ninety-
8
five instances, Commissioner Edwards’s vote reflected the community’s position.
Typically, other commissioners show “district courtesy” to each other. If a
proposed project is located within one commissioner’s district, the other
commissioners defer to that commissioner’s wishes.
Following the denial of its application, Hallmark filed a complaint under the
FHA, contending that the County discriminated on the basis of race in denying its
application. Hallmark alleged that in giving effect to the racist views of the
community groups, the County acted with intent to discriminate. It also alleged
that the denial of the re-zoning worked a disparate impact on African-Americans,
who were more likely to be the purchasers of the homes and renters of the
apartments and townhomes on the Property. The District Court granted summary
judgment in favor of the County with regard to the intentional discrimination
claim. It concluded that there was no evidence that the County was aware of the
racist views of the community members. It denied the motion for summary
judgment with regard to the disparate impact claim.
At trial, Hallmark produced an expert witness, Dr. Bradford, who testified
that the re-zoning decision had a disparate impact on minorities. Specifically, he
testified that “the elimination of either for sale or rental housing in the lower cost
ranges of the proposal for the Hallmark development would disproportionately and
9
adversely affect minority households as compared to white households.” He
calculated disparity ratios4 based on an assumption that persons who owned homes
or rented apartments in certain “value ranges” in particular geographical areas
were representative of those who would have purchased or rented homes on the
Property. Using data from the 2000 United States Census, Dr. Bradford examined
the race of each homeowner or renter, the individual’s estimate of the value of his
or her home or the amount of rent, and the address of the residence. He examined
this data in five geographical areas, of increasing size, that surround the Property:
(1) the area within a 10-mile radius of the Property; (2) the area within a 20-mile
radius of the Property; (3) the area within a 30-mile radius of the Property; (4) the
30-mile radius from central Atlanta; and (5) the 20 counties surrounding Atlanta.
He opined that the 30-mile radius from central Atlanta and the 20-county area
would be the most reliable indicator of the race of the likely owners or renters on
the Property.
Based on the disparity ratios he calculated, Dr. Bradford concluded that
there would be a statistically significant disparate racial impact arising from the
4
A “disparity ratio” is arrived at by dividing the percentage of all minority households
living in a certain value or rent range by the percentage of all white households living in that
same value or rent range. The underlying percentages are arrived at by dividing, for each racial
group, the total number of households within one value or rent range by the total number of
households within all values or rent ranges.
10
denial of the re-zoning due to the elimination of homes priced below $125,000 and
rental housing costing less than $750 per month.
The County produced an expert who testified that there is an oversupply of
housing within the price ranges Dr. Bradford testified were relevant to the
disparate impact on minorities. Dr. Camilla Johnson Moore, Director of the
Fulton County Office of Housing testified that at the time Hallmark’s re-zoning
application was denied, there was adequate housing for low and moderate income
residents. She testified there was an “oversaturation.” The District Court credited
this testimony. It concluded because other housing was available within the price
ranges that would allegedly produce the disparate impact, there was no appreciable
impact on minorities caused by the lack of the particular development Hallmark
wished to construct.
The District Court also concluded that the impact to which Dr. Bradford
testified was not significant. In terms of pure percentages (as opposed to disparity
ratios), black home purchasers and renters occupied only a slightly larger
percentage of the market than Caucasians in the relevant price ranges.
Finally, the District Court concluded that Dr. Bradford’s testimony was
inherently speculative. His calculations related to an estimated, hypothetical
11
group of individuals.5 Additionally, the District Court found that there was no
guarantee that any of the homes or apartments, if built, would be priced as
Hallmark intended. In the Chestnut Lake development, the homes sold for a
higher price than originally intended. The apartments were not to be built by
Hallmark, but by a contractor. Because Dr. Bradford’s opinion regarding
disparate impact was based on a specific price range, any potential changes in the
prices at which the homes actually sold or the apartments actually rented would
affect the validity of Dr. Bradford’s opinion.
Having concluded that Dr. Bradford’s testimony failed to establish a prima
facie case of disparate impact, the District Court entered judgment in favor of the
County. Hallmark has timely appealed.
III
A
Hallmark argues that the District Court erred in entering summary judgment
on its claim of intentional discrimination. The District Court’s entry of summary
judgment is reviewed de novo. Summary judgment is appropriate only if there is
no genuine issue of material fact and the moving party is entitled to judgment as a
5
He hypothesized and estimated this group on the assumption that those who currently
live in a given home value or rent range would be likely to purchase a home or rent an apartment
in the same price range on the Property.
12
matter of law. Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1278 (11th Cir. 2006).
The FHA prohibits the “refus[al] to sell or rent . . . or otherwise make
unavailable or deny, a dwelling to any person because of race, color, religion, sex,
or national origin.” 42 U.S.C. § 3604(a). In order to prevail on a claim under the
FHA, a plaintiff must demonstrate “unequal treatment on the basis of race that
affects the availability of housing.” Jackson v. Okaloosa County Fla., 21 F.3d
1531, 1542 (11th Cir. 1994). Housing may become unavailable within the
meaning of the FHA as a result of zoning decisions that effectively prohibit the
construction of housing. Id. at 1542 n.17.
To prove that a zoning decision was based on intentional discrimination, a
plaintiff must “establish that race played some role” in the decision. Sofarelli v.
Pinellas County, 931 F.2d 718, 722 (11th Cir. 1991).
Because explicit statements of racially discriminatory
motivation are decreasing, circumstantial evidence must
often be used to establish the requisite intent. Among
the factors that are instructive in determining whether
racially discriminatory intent is present are:
discriminatory or segregative effect, historical
background, the sequence of events leading up to the
challenged actions, and whether there were any
departures from normal or substantive criteria.
United States v. Hous. Authority of the City of Chickasaw, 504 F. Supp. 716, 727
(S.D. Ala. 1980) (citing Vill. of Arlington Heights v. Metropolitan Hous. Dev.
13
Corp., 429 U.S. 252 (1977)); see also United States v. City of Birmingham, Mich.,
727 F.2d 560, 566 (6th Cir. 1984) (articulating same test). For the sake of
discussion, we also accept that a plaintiff may demonstrate intentional
discrimination if the “decision-making body acted for the sole purpose of
effectuating the desires of private citizens, that racial considerations were a
motivating factor behind those desires, and that members of the decision-making
body were aware of the motivations of the private citizens.” United States v.
Yonkers, 837 F.2d 1181, 1225 (2d Cir. 1987); see also United States v. City of
Black Jack, Missouri, 508 F.2d 1179, 1185 n.3 (8th Cir. 1975); Jackson v. City of
Auburn, 41 F. Supp. 2d 1300, 1311 (M.D. Ala 1999) (“If . . . a zoning board’s
response to political pressure amounts to implementation of local residents’
discriminatory impulses, then the board’s actions may give rise to a cause of
action for intentional discrimination.”). Hallmark contends that the County
implemented the racist attitudes of community groups in its re-zoning decision. It
also argues that by applying the multi-factor test enunciated in City of Chickasaw,
we can infer that the County intentionally discriminated against African-
Americans in its re-zoning decision.
Hallmark produced evidence that the County acted for the sole purpose of
effectuating the desires of the community groups and that Commissioner Edwards
14
felt pressured by the groups. He encouraged Hallmark to meet with the groups,
and he met with the groups. Commissioner Edwards testified that he typically
votes in a manner consistent with the desires of the community groups. Hallmark
also demonstrated that some members of the community groups were motivated by
racial considerations. Hallmark’s evidence showed that during its own meetings
with the community groups, racist remarks were made.
However, Hallmark failed to establish that “members of the decision-
making body were aware of the motivations of the private citizens.” Yonkers, 837
F.3d at 1225. Although Hallmark contends that Commissioner Edwards told a
community leader, “I know a lot of your objection to projects [like Hallmark’s]
proposed development, is a black issue,” this is not sufficient to raise a triable
issue of fact. This statement does not demonstrate that (1) the other members of
the Board were aware of the racist attitudes of the community leaders; (2) that
Commissioner Edwards was aware that any other community leaders had racist
motivations; or (3) that despite the racist motivations of certain community
leaders, the Board was not justified in denying the re-zoning based on the quality
of the proposed development. See Jim Sowell Constr. Co., Inc. v. City of Coppell,
Tex., 61 F. Supp. 2d 542, 552 (N.D. Tex. 1999) (“The . . . evidence indicates that
many other citizens voiced their opposition to multifamily housing based on race-
15
neutral reasons, such as the adverse impact that dense housing facilities have on
public, services, traffic, and child safety. The evidence, viewed in the aggregate,
would permit a reasonable trier of fact to find only that the allegedly-biased
statements composed but a small fraction of the opinions presented to the
decisionmaking bodies.”).
Next, Hallmark points to statements made at the hearings that it
characterizes as “subtle” statements of bias. The statements to which it refers are
objections to the proposed price of the housing. They do not demonstrate racial
animus. They demonstrate class animus. Wealth is not a proxy for race. See
James v. Valtierra, 402 U.S. 137, 140-42 (1971); Boyd v. Lefrak Org., 509 F.2d
1110, 1112-13 (2d Cir. 1975). These statements are not sufficient to overcome
summary judgment. Macone v. Town of Wakefield, 277 F.3d 1, 7 (1st Cir. 2002)
(“While ambiguous remarks may, under some circumstances, help to illuminate
the summary judgment record, such remarks rarely will suffice to conceive an
issue of material fact when none otherwise exists.” ) (quoting Nat’l Amusements,
Inc. v. Town of Dedham, 43 F.3d 731, 743-44 (1st Cir. 1995)); cf. Metropolitan
Hous. Dev. Corp., 558 F.2d 1283, 1292 (7th Cir. 1977) (“The bigoted comments
of a few citizens, even those with power, should not invalidate action which in fact
has a legitimate basis.”).
16
Finally, in a footnote in its reply brief, Hallmark states that the County’s
Director of the Office of Housing, Dr. Moore, testified at trial that because the
area in which the Property is located is already predominately populated by
minorities, the re-zoning could have perpetuated segregation and result in
“ghettotization.” Hallmark characterizes this testimony as racist. Racist or not,
Dr. Moore was not a decision-maker with regard to Hallmark’s re-zoning
application. Her testimony does not establish that any Board member intentionally
discriminated against African-Americans in voting against zoning.
Applying the multi-factor test articulated in City of Chickasaw, Hallmark
contends that it has produced sufficient circumstantial evidence of discriminatory
intent. The first factor is whether there is evidence of discriminatory impact. City
of Chickasaw, 504 F. Supp. at 727. The testimony of Dr. Bradford, although not
sufficient on this point to render the District Court’s judgment clearly erroneous
(as will be discussed below), does establish discriminatory impact. See Jim
Sowell, 61 F. Supp. 2d at 547 n.1 (standard is lower for discriminatory impact
when part of the discriminatory intent inquiry).
Next, with regard to the “historical background” of the zoning decision,
Hallmark argues that the Board ratified the community groups’ discriminatory
motives. However, there is no evidence that the Board in fact ratified the
17
discriminatory motives of any community group.
With regard to the third factor, the sequence of events leading up to the
denial of the re-zoning, Hallmark points out that it was required to meet with
community groups repeatedly and that those groups expressed racial animus.
However, this sequence of events is only relevant if it demonstrates that the Board
ratified the racial biases of those groups.
Next, Hallmark produced evidence that the Board departed from customary
procedures in ignoring the recommendations of approval from its staff and
planning bodies and in holding three hearings. Such “procedural abnormalities are
only relevant within a larger scope.” Macone, 277 F.3d at 6. Here, there is no
context that renders this deviation suspect. The procedural departures are
explainable as a response to community concern. There is nothing inherently
wrong with responding to community pressure. Here, with no racial animus
expressed to the Board, bowing to political pressure does not demonstrate racial
animus.
Hallmark also maintains that the Board departed from substantive standards
in denying its application. Hallmark produced evidence that the proposed
development was consistent with the uses proscribed in the County’s Land Use
Plan. However, there is no evidence that the Board denied the proposed
18
development because it had concluded it was inconsistent with the County’s Land
Use Plan. Rather, the Board voted against re-zoning because Hallmark’s proposed
development was unpopular with voters and was poorly designed.
Hallmark has failed to demonstrate through direct or circumstantial
evidence that the Board intentionally discriminated on the basis of race in denying
the re-zoning application.
B
Hallmark also argues that the District Court erred in entering judgment in
favor of the County on its discriminatory impact claim. We may not set aside the
District Court’s findings of fact unless they are clearly erroneous. Holton v. City
of Thomasville Sch. Dist., 425 F.3d 1325, 1350-51 (11th Cir. 2005). Clear error is
a highly deferential standard of review. Id.“[A] showing of significant discriminatory effect suffices to demonstrate a
[prima facie] violation of the Fair Housing Act.” Jackson, 21 F.3d at 1543. A
plaintiff can demonstrate a discriminatory effect in two ways: it can demonstrate
that the decision has a segregative effect or that “it makes housing options
significantly more restrictive for members of a protected group than for persons
outside that group.” Hous. Investors, Inc. v. City of Clanton, Ala., 68 F. Supp. 2d
1287, 1298 (M.D. Ala. 1999). In this case, Hallmark advances only the second
19
theory–that the re-zoning decision of the County had a harsher impact on
minorities than Caucasians.
Typically, a disparate impact is demonstrated by statistics. See, e.g.,
Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 938 (2d Cir.
1988); City of Black Jack, 508 F.2d at 1186. Although no “single test controls in
measuring disparate impact,” Langlois v. Abington Hous. Auth., 207 F.3d 43, 50
(1st Cir. 2000) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995-96
n.3 (1988)), certain guidelines have developed. First, it may be inappropriate to
rely on “absolute numbers rather than on proportional statistics.” Huntington, 844
F.2d at 938. Second, “statistics based on the general population [should] bear a
proven relationship to the actual applicant flow.” Id. at 938 n.11. Third, the
appropriate inquiry is into the impact on the total group to which a policy or
decision applies. Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987 (4th Cir.
1984).
Whether the measure of disparate impact used is
disproportional representation, in which the percentage
of minority representation in the affected group is
compared against that minority’s representation in the
general population, or disproportionate adverse impact,
in which the minority group’s percentage representation
in the affected group is compared against the majority
group’s representation in the affected group, the starting
20
point is always the subset of the population that is
affected by the disputed decision.
City of Clanton, 68 F. Supp. at 1299.
In this case, Dr. Bradford appropriately measured the proportional impact
on each race and performed his analysis with regard to the group “affected by the
disputed decision.” The difficulty, however, is that the group “affected by the
disputed decision” is inherently speculative. Whether a person who currently
owns a home or rents an apartment within the price ranges proposed by Hallmark
for its development would purchase or rent one of Hallmark’s homes is
speculative. This renders Dr. Bradford’s estimation of the impact on minorities
suspect. There is no evidence that the statistics based on this general population
of home owners and renters bears “a proven relationship to the actual applicant
flow.” See Huntington, 844 F.2d at 938 n.11; see also Macone, 277 F.3d at 8(“Here, there is no information that any minorities would actually move into the
Hillview Estates Project.”).
In this respect, this case is distinguishable from the majority of cases in
which disparate impact was found. In those cases, invariably there was a waiting
list for affordable housing or a shortage of housing for which only a defined group
qualified. See, e.g., Langois, 207 F.3d at 47-48 (considering those who qualify for
federally subsidized housing); Jackson, 21 F.3d at 1543 (majority of individuals
21
on wait-list for housing were minority); Huntington, 844 F.2d at 929 (considering
impact of housing shortage on those who qualify for federally subsidized
housing); Betsey, 736 F.2d at 987 (particular individuals evicted from homes);
Metropolitan Hous. Dev., 558 F.2d at 1288 (considering housing intended for
those who qualify for federal subsidies); City of Black Jack, 508 F.2d at 1186(with regard to housing intended for those within a certain income range, there
“was ample proof that many blacks would live in the development”); Ass’n of
Relatives and Friends of AIDS Patients v. Regulations and Permits Admin., 740 F.
Supp. 95, 98 (D. P.R. 1990) (impact is on group of individuals with AIDS who
were intended to live in group home); Malone v. City of Fenton, Missouri, 592 F.
Supp. 1135, 1162 (E.D. Mo. 1984) (considering only those who qualify for
federally subsidized housing). The inherent difficulty in defining the group
affected by the re-zoning decision supports the District Court’s decision that Dr.
Bradford’s results are “inherently speculative.”
Another difficulty with Dr. Bradford’s testimony identified by the District
Court is the existence of other housing within the price range proposed by
Hallmark. Hallmark contends that the District Court’s conclusion on this issue
was clearly erroneous for two reasons: (1) it was based on the testimony of Mr.
Gary Hammond, who Hallmark contends was not qualified as an expert; and (2)
22
because the existence of other available housing is irrelevant.
First, the District Court’s conclusion with regard to the availability of other
housing was not based solely on the testimony of Mr. Hammond. Dr. Moore also
testified that there was adequate housing for low and moderate income residents.
The District Court did not clearly err in crediting this testimony.
Second, the availability of other housing within the relevant price ranges is
relevant to the accuracy of Dr. Bradford’s statistics. If there is a glut in the market
of homes in Hallmark’s projected price range, the lack of the Hallmark’s particular
development is not likely to have an impact on anyone, let alone adversely affect
one group disproportionately. As explained above, adverse impact is consistently
found when there is a housing shortage. See, e.g., Metropolitan Hous. Dev., 558
F.2d at 1288 (noting that decision not to re-zone land for public housing precluded
public housing in that area unless other land were zoned). It stands to reason that
the impact of a failure to build particular housing may be measured more
accurately when no other housing is available.
Hallmark argues that the District Court erred in considering whether
housing was available at the time the Board denied its re-zoning application
because the area in which the Property is located is expected to grow population-
wise over the next ten to fifteen years. Hallmark contends that housing
23
opportunities for minorities will be denied in the future if affordable housing is not
built. Hallmark cites no authority for the proposition that this Court should
consider whether there will be an impact in the future on minorities, as opposed to
whether there was an impact at the time of the zoning decision. Additionally,
Hallmark’s argument is speculative. It cannot be determined what type of housing
will be built in the future or what the price of that housing will be.
Hallmark asserts that “blocking these units from being built . . . denies these
minority households the opportunity and advantage of increased housing choices
and supply.” It contends that by looking at the existence of other housing when
this particular housing was denied is like saying that even if one lunch counter is
“whites only,” there is no harm if other lunch counters are available. However,
there is no federally protected right to housing in a
particular community, an allegation which lies at the
essence of plaintiff’s action. . . . Plaintiffs are not
prevented from obtaining all housing in the [South
Fulton] community as a result of [the decision not to re-
zone].
Schmidt v. Boston Hous. Auth., 505 F. Supp. 988, 995-96 (D. Mass. 1981)
(emphasis added). Nor does Hallmark cite any authority for the proposition that
an individual has a right to “increased housing choices and supply.” Where such a
right would end, Hallmark does not explain. Recognizing a right to “increased
housing choices and supply” would effectively place an affirmative duty on
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governing bodies to approve all re-zoning applications wherein a developer sought
to build housing within a particular price range. Furthermore, Hallmark’s lunch
counter analogy is flawed. Here, there is no evidence that South Fulton is
currently segregated and that Hallmark’s development would end that segregation.
Therefore, there is no “segregated lunch counter” that the County is refusing to
remedy. The District Court did not clearly err in finding that other affordable
housing is available. This finding cuts against the accuracy of Dr. Bradford’s
opinion.
The District Court also rejected Dr. Bradford’s testimony on the grounds
that Hallmark’s projected price ranges may not be the price at which the homes
actually sell and the apartments actually rent. Hallmark argues correctly that the
District Court’s finding on this issue was partly speculative. Hallmark failed to
meet its burden of demonstrating that the houses would actually sell and the
apartments and townhomes would actually rent for the prices projected.
The District Court did not clearly err in refusing to credit the testimony of
Dr. Bradford. We need not reach the issue of whether the District Court clearly
erred in concluding that Dr. Bradford’s testimony failed to establish that the
disparity ratios were statistically significant.
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C
Hallmark challenges the District Court’s decision to admit the testimony of
Mr. Hammond. A decision to admit or exclude an expert’s testimony is reviewed
for abuse of discretion. Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305-06 (11th
Cir. 1999). Hallmark argues that the District Court erred in failing to hold a
Daubert hearing regarding Mr. Hammond’s testimony and that Mr. Hammond’s
testimony was based on flawed methodology. We do not reach this issue because
the District Court’s judgment does not depend on the admissibility of Mr.
Hammond’s testimony.
AFFIRMED.
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